Madison - St. Clair Record

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Stobbs rules MC asbestos court lacks personal jurisidction over Texan defendant; Murco's joint compound blend also did not contain asbestos

By The Madison County Record | Nov 4, 2015


Madison County Associate Judge Stephen Stobbs dismissed a Texas defendant from an asbestos suit on Oct. 20, for lack of jurisdiction.

He entered an order in favor of Murco Wall Products six days after a hearing.

“Defendant Murco maintains that they did not conduct business or make sales of products manufactured by Murco to the state of Illinois and the plaintiff offers insufficient evidence that it did,” Stobbs wrote.

He found that attorney Jennifer Mackey, representing the estate of Gary Voss, relied on undefined sales of a joint compound that another defendant manufactured.

Suit was filed on behalf of Voss, who resided in Illinois outside of Madison County, in January. Mackey sued Murco along with many other defendants.

Stobbs also found that evidence of a franchise agreement between Murco and the other defendant, Ruco, was insufficient to impute jurisdiction over Murco.

Murco moved to dismiss the claim, and brought the motion to Stobbs on Oct. 14.

For Murco, attorney Katherine Stepp of Dallas said Ruco’s successor was separately sued in the case.

“I believe they’re out of the case,” Stepp said. “I’m not sure what happened to them.”

Stepp said joint compound distributor John Rew, now dead, asked Bud Murphy, also dead, to show him how to manufacture joint compound.

She said Rew started Ruco in Kansas City, to manufacture a blend Murphy sold him through a company he called Murco.

“There is no dispute that that blend did not contain asbestos,” Stepp said.

She said Murco never shipped any product containing asbestos to Illinois and never held a license to do business there.

“Due process requires that a defendant be held in a court in a forum state based on its own affiliation with that state, not based on random, gratuitous, or attenuated contact, which is all that plaintiff here has, if anything,” Stepp said.

For the estate, Sophie Zavaglia of SWMK Law in St. Louis said Voss testified that he recalled using Murco joint compound in buckets.

Zavaglia said Ruco sold Murco products to Illinois.

She said Murco sent products to Aurora, Ill., and purchased asbestos products with checks it sent to Union Carbide in Chicago. She quoted a sales letter from asbestos maker Johns Manville that Murphy was in charge of purchasing asbestos for Ruco.

She said Murphy understood that dealing with Ruco would lead to sales in Illinois.

Stobbs asked if Murphy got a royalty or commission from any sales in Illinois.

Zavaglia: “He would have, yes.”

Stobbs: “Not would have. Did he?”

Zavaglia: “We don’t have that evidence, quite frankly your honor.

“We’re working with whatever we can get, as I’ve noted, from other plaintiff’s firms.

“We don’t have an express written consent between Murco and Ruco, but we wouldn’t have it because they haven’t given it to us.”

She said Rew testified that Murphy said he’d like to sell to Illinois.

She produced a document, and Murco counsel Greg Deans of Dallas objected.

He said he represented Murco since their first lawsuit in 2002, and no one ever offered the document into evidence.

“It’s not authenticated,” Deans said. “It’s not signed.”

Zavaglia said, “We agree. We don’t know where it came from.”

Stobbs asked her how he could consider it for purposes of the motion.

“We’re trying to find the source of the document so that it can be properly authenticated,” she answered.

Stobbs asked her if Murco had any contact with Illinois prior to 1971, and she said Murco did not exist prior to 1971.

He asked her if from 1971 to 1974, Murco and Ruco entered into a franchise agreement to sell Murco’s product through Ruco’s brand name.

She said that was correct, and Murco counsel Patrick Stufflebeam of HeplerBroom in Edwardsville disagreed.

Stufflebeam: “Murco provided a non asbestos blend to Ruco during this time for Ruco to then manufacture its own joint compound and market it under the Ruco brand.”

Stobbs: “Ruco was selling its own joint compound that contained the Murphy blend?”

Stepp said that was correct.

Stobbs told Zavaglia that at a minimum, she had to have the Ruco product selling in Illinois between 1971 and 1974.

Stepp quoted Rew’s testimony and said Ms. Benton, Murphy’s daughter, disputed it.

Stobbs asked if Benton worked for the company in that time frame.

Stepp: “No, she was a child then.”

Stobbs: “Well, how would she know?”

Stepp: “Because her dad had records and because of the franchise agreement.”

Stufflebeam: “I don’t think we have before us a deposition of any Rew son, father, whatever, saying the year they first sold to the state of Illinois.”

Stepp said Benton testified that her father took it to the grave. She said Benton testified that her mother and her brother might have known, but they were deceased.

Stobbs said he would take all the exhibits and render a decision.

Stepp objected to the Johns Manville letter as hearsay within hearsay.

“It’s a sales person,” she said. “Who is this person? I don’t even know.”

Stobbs adjourned the hearing, and his order followed.

He wrote that an Illinois court has specific jurisdiction over a defendant if a suit directly arises out of contacts between the defendant and the forum.

“At a minimum, the court must find an act by which the defendant purposefully avails him or herself of the privilege of conducting activities within the forum state, such that they should be able to reasonably anticipate being sued there,” he wrote.

“Merely placing a product in the stream of commerce, even where it is foreseeable that the product would ultimately end up in the forum state is insufficient to establish minimum contacts with the forum state.

“Plaintiff relies upon evidence of certain undefined sales of a joint compound product manufactured by a company named Ruco, which was a franchisee of Murco during the relevant time periods.

“While Ruco and Murco entered into the franchise agreement for the purposes of manufacturing, selling and distributing a joint compound product for the mutual benefit of both companies, evidence of this relationship is insufficient to impute personal jurisdiction over defendant Murco.”

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